Does an employee have to be “sexually” harassed in order for there to be a breach of the Human Rights Code (“Code”)? This issue was determined in Hill v. Intersteam Technologies Inc., a recent decision from the Human Rights Tribunal of Ontario.

Background

The applicant, Kelly Hill, worked in a small workplace. She was employed with the corporate respondent, Intersteam Technologies Inc., for only a short period of time from May of 2013 until November 2013.

The applicant alleged that during the course of her employment, she was discriminated against with respect to employment because of her sex. The hearing was held on March 19, 2015. None of the parties were represented.

The applicant alleged that one of the male employees had engaged in inappropriate sexualized behaviour in the workplace. Such examples included the male employee making repeated references to his genitalia and displaying his genitalia in her presence, as well as the applicant being subjected to a humiliating sexual question by the male employee, and to conversations about his sexual relationship and those of others who worked there.

The organizational respondent, Manfred Dietrich, the personal respondent, Eloise Robillard who is Mr. Dietrich’s daughter, and the second personal respondent, Sean Robillard, spouse of Ms. Robillard, all denied that any such incidents took place, although Mr. Robillard did admit to asking a sexual question of the applicant. The applicant maintains that she eventually brought Mr. Robillard’s behaviour to the respondents’ attention.

Analysis

The majority of the evidence was entered as oral testimony, and as such, its resolution required that the Tribunal make determinations about the credibility of the witnesses.

After hearing testimony from all parties, the Tribunal allowed the Application in part as the Tribunal concluded that it is more likely than not that several of the incidents complained of by the applicant did occur, and that such concerns were brought to the attention of management. [i]

The Tribunal was guided by the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.):

…The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”[ii]

Damaging to the respondents is the fact that the male employee’s oral testimony was inconsistent from that of his will say statement, while the applicant gave her evidence in a straightforward manner and was able to describe the events she complained of with significant details indicating she was describing real events. [iii]

Findings

The Tribunal found that the behaviour of the male employee sexualized the workplace in a way that the applicant found uncomfortable, and while not directed at her in particular, it created a poisoned work environment for her. Further, that while such behavior was brought to the attention of management, Mr. Dietrich and Ms. Robillard did not treat the applicant’s concerns seriously.[iv]

Damages

As the applicant’s dismissal from employment was unrelated to the issues of concern, the applicant’s damages were lower. The applicant was awarded $5,000.00 in compensation for damage to the applicant’s dignity, feelings and self-respect.

The takeaway is that employers, whether operating a small or large business, need to keep up to date on their responsibilities under the Human Rights Code. As demonstrated in Hill v. Intersteam Technologies Inc., sexual “innuendo” may not be targeting a specific person, nonetheless, it may still contribute to a poisoned work environment under the “Code”.

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Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more

[…] …The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”[ii] […]